Wakilii

Bireete v Uganda (Criminal Appeal No. 0079 of 2011)

Court of Appeal · [2016] UGCA 10 · 2016 Appeal Partly Allowed ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Criminal appeal from High Court conviction for abuse of office and embezzlement
Decision
Appellant acquitted of abuse of office; embezzlement conviction, 7-year sentence, compensation order and 10-year disqualification upheld

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Cited — treatment unverified cited in 1 (treatment unverified) Derived from citing cases in the Wakilii corpus — not an assertion that this case is good law.

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Holding

The Court of Appeal partly allowed the appeal. It found no proven bias by the trial Judge and held that the appellant, as Conference Coordinator for the ICGLR National Coordination Mechanism, was a person employed in a government undertaking and so chargeable under the Anti-Corruption Act. The conviction for abuse of office was quashed because the prosecution failed to prove beyond reasonable doubt that the appellant forged the recall letter or committed an arbitrary prejudicial act. The conviction for embezzlement was upheld, the surplus contribution being Government property that disappeared after withdrawal. The 7-year sentence, compensation order and 10-year disqualification for embezzlement were upheld; the abuse-of-office sentence was set aside.

Facts

The appellant was employed from 2004 as Conference Coordinator for the National Coordination Mechanism of the International Conference on the Great Lakes Region (ICGLR), a government undertaking under a Pact signed by Uganda. In 2009 Uganda overpaid its contribution to the ICGLR by USD 114,160, which the secretariat returned. The Ministry of Foreign Affairs received a letter purportedly from the secretariat, later alleged to be forged, treating the sum as a grant. Another letter requested the refund be deposited into a Tropical Bank account held by the Great Lakes Youth League, of which the appellant was President. The sum was credited to that account and largely withdrawn, with the appellant's sister, a signatory, signing for it. The withdrawn money was not properly accounted to Government. The appellant was indicted for abuse of office and embezzlement, convicted on both counts, and appealed.

Issues

  1. Whether the trial Judge exhibited bias that occasioned a miscarriage of justice.
  2. Whether the appellant was a person employed in a public body within the meaning of the Anti-Corruption Act.
  3. Whether the essential ingredients of abuse of office and embezzlement and the appellant's participation were proved beyond reasonable doubt.
  4. Whether the trial Judge properly evaluated the prosecution and defence evidence.
  5. Whether the sentences and consequential orders were harsh and excessive warranting appellate interference.

Orders

  • Appeal succeeds in part.
  • Conviction for abuse of office quashed and sentence set aside.
  • Appellant acquitted of abuse of office.
  • Conviction and sentence for embezzlement upheld.
  • Appellant to start serving her sentence; bail pending appeal cancelled.
  • Order disqualifying the appellant from holding public office for 10 years upon release upheld.
  • Order to refund US Dollars 70,160.00 upheld.

Key headnotes

Judicial Bias — Real Likelihood Test — Conduct of Trial Judge
The test for judicial bias is whether a reasonable person would think it likely or probable that the judge would favour one side unfairly; surmise or conjecture is insufficient and isolated procedural rulings or remarks not influenced by preconceived negative opinion do not amount to bias.
Anti-Corruption Act — Public Body — Government Undertaking
A person engaged in a government undertaking established under an international agreement, such as the National Coordination Mechanism of the ICGLR, is a person employed in a public body within the meaning of the Anti-Corruption Act, regardless of whether their salary is paid from the Consolidated Fund or by donor support.
Abuse of Office — Proof of Arbitrary Act — Standard of Proof
A conviction for abuse of office cannot stand where the prosecution fails to prove beyond reasonable doubt the alleged arbitrary act, including that the accused forged the impugned document or initiated the prejudicial conduct.
Embezzlement — Access by Virtue of Office — Failure to Account
Embezzlement is established where Government property accessible to the accused by virtue of office is withdrawn through an account she controls and disappears without being accounted for to Government, the accused being aware of and participating in the transactions.
Submission of No Case to Answer — Trial on Indictments Act s.73
Under section 73 of the Trial on Indictments Act, the court may determine whether a prima facie case exists on the prosecution evidence; permitting counsel to incorporate the no-case argument in final submissions, with counsel's agreement, does not deny the accused an opportunity to be heard nor occasion a miscarriage of justice.
Sentencing — Appellate Interference with Sentence
An appellate court will not interfere with the trial judge's discretion in sentencing unless the sentence is illegal or manifestly so excessive as to amount to an injustice.

Legislation cited (9)

  • Anti-Corruption Act 2009 s.11(1)
  • Anti-Corruption Act 2009 s.19(a)(iii)
  • Anti-Corruption Act 2009 s.1
  • Trial on Indictments Act s.73
  • Public Service Act 2008 s.2
  • Employment Act s.2
  • Constitution of Uganda Article 28(1)
  • Constitution of Uganda Article 175
  • Rules of the Court of Appeal Rule 30(1)(a)

Cases cited (8)

  • Kifamunte Henry v Uganda (Criminal Appeal No. 10 of 1997)
  • Bogere Moses v Uganda (Criminal Appeal No. 1 of 1997)
  • GM Combined Ltd v AK Detergents (U) Ltd (Civil Appeal No. 19 of 1998)
  • Exparte Barnsley and District Licensed Valuers Association (1960) 2 QBJ 169
  • Local ball (UK) Ltd v Bay Field Properties Ltd and Another 2000 QB
  • Uganda v Kisembo Moses and 3 Others (Criminal Case No. 22 of 2014)
  • Kyalimpa Edward v Uganda (Criminal Appeal No. 10 of 1995)
  • R v De Haviland (1983) 5 Cr. App (R)s 109
Source: this page presents Wakilii’s issue analysis and metadata for a publicly reported Ugandan judgment. Any AI-generated summary is marked as such. Judgment text is sourced from the Uganda Legal Information Institute (ulii.org). Wakilii is not affiliated with ULII.